DISSENTING OPINION OF JUDGE TULKENS

I cannot subscribe to the decision of the majority in so far as it departs in two essential respects from the Court ’ s case-law concerning A rticle 5 § 3 of the Convention and from the general principles underlying that provision.

1. I note firstly that the present case is similar to Patsuria v . G e orgi a (no. 30779/04 , §§ 61-77 , 6 November 2007 ), in which the Court held precisely that in the absence of specific, relevant and sufficient grounds, the first three months of the applicant ’ s pre-trial detention had breached Article 5 § 3 of the Convention.

This touches on a basic principle governing the Court ’ s settled case-law. A decision to continue a person ’ s pre-trial detention must be duly reasoned and the reasons must be given in concreto . It is essentially on the basis of the reasons given in the relevant decisions of the national judicial authorities and of the arguments submitted by the applicant in his or her applications for release that the Court is called upon to decide whether or not the detention on remand was justified under Article 5 § 3 of the Convention. In this context , any period of detention on remand, whatever its length, requires appropriate reasoning by the competent national authorities (see Jabłoński v. Poland , no. 33492/96, § 80, 21 December 2000). It was precisely such a review and such reasoning that were lacking in the present case.

2. The domestic courts did not attempt to refute the arguments submitted by the applicant in his applications for release but simply accepted the general, abstract assertions put forward by the prosecution ( see paragraphs 13-15 of the judgment ). C ontrary to the relevant Convention standards (see, for example, Garycki v. Poland , no. 14348/02, § 46, 6 February 2007) , the first-instance court endorsed the mere existence, unrelated to other valid grounds, of a reasonable suspicion that the applicant had committed the offence , and referred to the severity of the possible punishment (see Rokhlina v. Russia , no. 54071/00, § 66, 7 April 2005 , and Khudoyorov v. Russia , no. 6847/02, § 181, ECHR 2005 ‑ X ). Another reason which was relied on – the lawfulness of the evidence collected – was necessary under domestic law to justify the applicant ’ s detention; however, in my view, this goes to the issue under Article 5 § 1 (c) of the Convention and it is not relevant for the assessment of the reasonableness of the decision concerning pre-trial detention for the purposes of Article 5 § 3 (see Patsuria , cited above, § 68).

3. Admittedly , the fear that the applicant might abscond or hamper the establishment of the truth might, in principle, have been a valid ground. However, the domestic courts did not substantiate this fear with reference to any specific circumstances of the case, and relied solely on the prosecutor ’ s abstract statements, unsupported by actual evidence (see, by contrast, Ramishvili and Kokhreidze v. Georgia (dec.) , no. 1704/06, 27 June 2007).

In particular, the first-instance court mentioned, without providing any logical explanation for the asserted cause and effect, the need to test the seized gun in order to establish whether it had been used in any other crimes ( see paragraph 13 of the judgment ). However, I am unable to discern how the applicant ’ s release might have hindered that particular investigative measure, given that the gun in question had already been taken from the applicant and was in the authorities ’ possession. Neither did the appellate court specify why the applicant, if released, might interfere with the investigation. Consequently, I find that the risks of absconding and hampering the establishment of the truth appear, in the present case, to be unsubstantiated, hypothetical and thus insufficient to justify depriving the applicant of his liberty (see Patsuria , cited above, §§ 69 and 71; Letellier v. France , judgment of 26 June 1991, Series A no. 207, § 43; and Smirnova v. Russia , no. 46133/99 a nd 48183/99, § 63, ECHR 2003-IX ).

4. E ven though specific, relevant facts warranting the applicant ’ s deprivation of liberty may have existed in the present case, they were not set out in the relevant domestic decisions (see Labita v. Italy [GC] , no. 26772/95 , § 152 in fine , ECHR 2000-IV ). It is not the Court ’ s task to take the place of the national authorities and establish such facts in their stead (see Ilijkov v. Bulgaria , no. 33977/96, § 86, 26 July 2001; Nikolov v. Bulgaria , no. 38884/97, § 74, 30 January 2003; and Panchenko v. Russia , no. 45100/98, § 105, 8 February 2005), as the majority did in the present case ( see paragraph 49 of the judgment ).

5. What, then, are the factors which led the majority to conclude that there was no violation of A rticle 5 § 3 of the Convention in this case ?

A first aspect that was explicitly mentioned was the severity of the penalty to which the applicant was liable ( see paragraph 48). The Court has always held that the seriousness of the offence – and, consequently, the severity of the sentence – is a necessary ground for continuing a person ’ s pre-trial detention but is in itself insufficient; other supporting reasons must also be given ( see Demirel v . Tur key , no. 39324/98 , § 59 , 8 January 2003, and Goral v. Pol and , no. 38654/97 , § 68 , 30 October 2003), but that did not happen in this case .

The second aspect is probably the decisive factor which persuaded the majority : the length of the applicant ’ s pre-trial detention, a period of five months, which was deemed, so to speak, “insufficient”. This marks, in my opinion, the other departure from our case-law. As the Court forcefully pointed out in Belchev v . Bulgaria (no. 39270/98 , § 82, 8 April 2004), there is no cause to consider that there is a “certain period” within which pre-trial detention may be regarded as acceptable. Even a relatively short period of detention – the period in Belchev was four months and fourteen days – must be justifie d by the authorities and may, where appropriate, be found to breach Article 5 § 3 if there is no satisfactory justification.

6. Lastly , under Article 5 § 3 of the Convention, when deciding whether a person should be released or detained, the authorities must consider alternative measures of ensuring his or her appearance at the trial. Indeed, this provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see, among other authoritie s, Kaszczyniec v. Poland , no. 59526/00, § 57, 22 May 2007). The authorities are under an obligation to conduct such a review and it must be clear from the reasoning of their decision that the review has taken place ( see J.G. v. Poland , no. 36258/97 , §§ 55-56 , 6 Ap ril 2004). However, in the present case, the domestic courts did not consider at all the possibility of applying other non-custodial preventive measures, which were expressly envisaged by Article 152 § 1 of the CCP. Such an omission by the domestic courts is yet another indication of their disregard for the requirements of Article 5 § 3 of the Convention (see Patsuria , cited above, §§ 75-76, and Dolgova v. Russia , no. 11886/05, §§ 47, 48 and 50, 2 March 2006).

7. As the Court has often emphasised, the safeguard in A rticle 5 § 3 of the Convention secures “ the rule of law, one of the fundamental principles of a democratic society ” ( see Dikme v . Tur key , no. 20869/92 , § 66 , ECHR 2000-VIII) . The very essence of A rticle 5 § 3 is the right to remain free pending a criminal trial, so that the presumption of innocence is given practical and useful effect rather than being theoretical and illusory . Liberty is the rule and detention the exception. T hat is the message which the Court should be giving States in the efforts they pursue, by various means, to limit pre-trial detention, which is a problematic issue in all criminal ‑ justice systems in Europe.

[1] The exchange rate as at 22 February 2008.